Tuesday, April 19, 2016

Revisiting The Statute of Limitation For Claims Against Home Inspectors

Though I am not a big fan of Wis. Stat. s. 452.142, I have to give credit where credit is due.  Despite my position that s. 452.142 does not shorten the limitations period for sellers' contribution actions against their real estate agents, the new statute appears to shorten the limitations period for breach of contract and negligence actions against real estate agents.  It also appears to shorten the limitations period for Wis. Stat. s. 100.18 actions against real estate agents.  The Wisconsin REALTORS Association made sure that the new statute trumps existing statutes of limitations for breach of contract actions under s. 893.43, negligence causing property damage actions under s. 893.52, and s. 100.18 actions.  The new statute applies "notwithstanding" those contrary provisions.

Wis. Stat. 440.977(1) purports to create a statute of limitation for claims against home inspectors:

Notwithstanding s. 893.54, an action to recover damages for any act or omission of a home inspector relating to a home inspection that he or she conducts shall be commenced within 2 years after the date that a home inspection is completed or be barred.

In a previous post, I called this a "strict two-year statute of limitation."  After examining s. 452.142 however, I am no longer convinced that s. 440.977(1) is so strict.

This statute only expressly trumps an existing statute of limitation for negligence causing personal injury or death.  Unlike s. 452.142, s. 440.977(1) does NOT explicitly override the respective limitations periods in s. 893.43 and s. 893.52.  A homeowner has a plausible argument that s. 893.43's 6-year statute of limitation should govern the breach of contract action against his home inspector.  A homeowner also has a colorable argument that 893.52 should govern his negligence causing property damage action against his home inspector, especially since that statute applies "[e]xcept as provided in sub. (2) and in any other case where a different period is expressly prescribed."  While the legislative intent to override s. 893.54 is clearly stated, there is no evidence in the statutory language that s. 440.977(1) was intended to override s. 893.43 or s. 893.52.  Stated another way, a different limitations period for breach of contract and negligence causing property damage actions is not expressly prescribed by s. 440.977(1).

The evidence is even clearer that s. 440.977(1) does not shorten the limitations period for s. 100.18 actions against home inspectors.  Oftentimes, I come across a home inspector who claims on his website that he is "insured"; that he is some sort of "specialist" in foundations or roofs; or that he has certain certifications beyond the standard home inspection license.  If statements on a home inspector's website are untrue, deceptive or misleading and induce a consumer to choose him as a home inspector, the consumer has a potential claim under s. 100.18.  Unlike 452.142, s. 440.977(1) does not explicitly trump the existing limitations period in s. 100.18.  Furthermore, s. 100.18 actions against home inspectors are not based on "any act or omission of a home inspector relating to a home inspection that he or she conducts. . . ."  Such actions are based on the deceptive or misleading statements that the home inspector made to convince consumers to hire him as a home inspector in the first place.  Under its plain language, s. 440.977(1) cannot apply to s. 100.18 actions against home inspectors.

All that being said, you cannot count on courts to interpret s. 440.977(1) this way.  If you believe that you have been deceived by your home inspector or damaged by his poor performance, you need to contact an attorney right away.  Please contact me at rudolphkuss@stevensandkuss.com.